ARLYNE REICHERT, WADE DAHOOD, JEAN BOWMAN, PATRICIA ROSENLEAF, SUSAN LUBBERS, JOAN HURDLE, ROBERT FILIPOVICH, KAREN RICHARDSON, DALE McGARVEY, JUDY MATHRE, MILLY GUTKOWSKI, GLADYS HARDIN, LOUISE DAVIS, and MERLIN DAVIS, Plaintiffs and Appellees, vs. STATE OF MONTANA, by and through LINDA McCULLOCH, in her capacity as Secretary of State, Defendant and Appellant.
No. DA 12-0187
Supreme Court of Montana
Decided May 18, 2012
Submitted on Briefs April 12, 2012.
2012 MT 111 | 365 Mont. 92 | 278 P.3d 455
For Appellant: Steve Bullock, Montana Attorney General, Andrew I. Huff, Assistant Attorney General, Helena.
For Appellees: Lawrence A. Anderson, Attorney at Law, Great Falls; Peter Michael Meloy, Meloy Law Firm, Helena.
For Amici Curiae Seven Montana Legislators: Arthur V. Wittich, Margaret M. Reader, Wittich Law Firm, P.C., Bozeman.
JUSTICE NELSON delivered the Opinion of the Court.
¶1 The State of Montana appeals from the decision of the First Judicial District Court, Lewis and Clark County, ordering Secretary of State Linda McCulloch to decertify Legislative Referendum No. 119 (LR-119) and enjoining the Secretary of State from presenting LR-119 on the June 5, 2012 primary election ballot.
¶2 We address the following issues on appeal:
- Whether the non-retiring justices on this Court should recuse themselves from participating in the decision of this appeal.
- Whether Plaintiffs’ constitutional challenge to LR-119 is justiciable.
- Whether LR-119 is constitutionally defective.
- Whether the constitutionally infirm provisions of LR-119 can be severed from the remainder of the referendum.
¶3 We hold that recusal is not required. We further hold that Plaintiffs’ complaint is justiciable, that LR-119 impermissibly amends the Montana Constitution, and that the offending provisions cannot be severed. We accordingly affirm the District Court.
BACKGROUND
LR-119
¶4 The 62nd Montana Legislature enacted Senate Bill 268 (SB 268), which submits to the electorate the question whether certain statutory changes should be made regarding the election of justices to the Montana Supreme Court. See Laws of Montana, 2011, ch. 203. SB 268 was filed with the Secretary of State on April 18, 2011, and was to be submitted to the voters at a special election to be held concurrently with the June 5, 2012 primary election. SB 268 was to appear on the ballot as Legislative Referendum No. 119. The ballot language of LR-119 and the text of SB 268 are included as an appendix following this Opinion.
¶5 The Montana Supreme Court is composed of seven justices, one
¶6 Under current law, the justices are elected on a statewide basis. See
¶7 LR-119, therefore, would effect three changes concerning the qualifications and selection of justices. First, LR-119 adds a residency and voter-registration requirement: a candidate for a seat on the Supreme Court must be a “qualified elector” of the district from which the candidate is elected. (Once elected, a justice is not required to reside within that district during the justice‘s service in office.) Second, LR-119 creates seven Supreme Court districts and requires that each justice be elected from a separate district. Only voters in a given
Procedural History
¶8 Plaintiffs2 are Montana citizens, taxpayers, and electors who historically have participated in elections for justices of the Montana Supreme Court and who reside in each of the seven districts proposed by LR-119. Plaintiffs commenced this action on November 23, 2011, naming the State, by and through Secretary of State Linda McCulloch, as defendant. Plaintiffs sought a declaratory judgment that LR-119 is constitutionally defective. Plaintiffs asked the District Court to order the State to decertify LR-119 and to enjoin the State from placing LR-119 on the ballot. The State, through the Attorney General, filed an answer on January 3, 2012. The answer included responses to the specific allegations of the complaint. In addition, the State asserted that Plaintiffs’ constitutional challenge is not ripe and that LR-119 is not constitutionally defective in any event. Plaintiffs filed a motion for summary judgment, together with a supporting brief and affidavits, on January 18. The State filed its brief in opposition on February 10, and Plaintiffs filed their reply on February 23. The District Court scheduled a summary judgment hearing for March 14.
¶9 Meanwhile, on January 9, seven individual Montana legislators3 (Legislators) filed a motion to intervene in the action as party defendants pursuant to
¶10 In response to the District Court‘s ruling, Legislators first filed a direct appeal to this Court on March 9. Plaintiffs responded with a
¶11 In the interim, Legislators filed a petition for writ of supervisory control on March 15, again challenging the District Court‘s denial of their motion to intervene. This Court denied the petition and affirmed the District Court‘s February 28 order. Seven Mont. Legislators v. First Jud. Dist. Ct., No. OP 12-0171 (Mar. 16, 2012). We noted that if they wished to do so, Legislators could participate in the action by filing an amicus brief in the District Court electronically by 9:00 a.m. on March 19. Legislators did not file an amicus brief on March 19; however, per an earlier request by Legislators (filed March 15), the District Court did consider Legislators’ previously filed documents (their answer to the complaint, and their response brief in opposition to Plaintiffs’ motion for summary judgment) in analyzing the issues.
¶12 The District Court rendered its decision on March 20, granting summary judgment to Plaintiffs. The court determined, and the parties do not dispute, that the issues in this case are issues of law. In summary, the court concluded: that Plaintiffs’ challenge to LR-119 is justiciable; that LR-119 is unconstitutional on its face because it attempts, through statutory measures, to change the constitutionally established qualifications for Supreme Court justice by adding a new residency requirement; that LR-119‘s division of the state into seven Supreme Court districts, with the requirement that one justice be selected from each district, also introduces an unconstitutional residency requirement; and that LR-119 cannot be salvaged by severing the invalid portions of the referendum. The District Court‘s reasoning is discussed below where applicable. As noted, the court ordered the Secretary of State to decertify LR-119 and enjoined the Secretary of State from presenting LR-119 on the June 5, 2012 ballot.
¶13 The State filed its notice of appeal with the Clerk of this Court on March 21. Also on March 21, the State filed with the Clerk of the District Court a motion pursuant to
¶14 Notwithstanding its request for an “immediate” stay, the State did not present the District Court with a proposed order or include a separate notice that the matter had to be ruled upon before 5:00 p.m. the next day. Nor did the State request that the Clerk of the District Court bring the motion to the court‘s attention within a certain timeframe. One had to read the State‘s brief to glean this information; however, as explained by the Clerk of the District Court, she and her staff do not have the time to read and interpret all of the documents filed with the court. As a result, the State‘s motion was not presented to the District Court judge until approximately 1:30 p.m. on March 23. By this time, pursuant to
¶15 On April 4, the State filed a motion in this Court to expedite the
¶16 This Court granted the State‘s motion on April 5. We ordered the State to file its brief by April 6, Plaintiffs to file their brief by April 10, and Legislators to file their amicus brief (if they wished to file one) by April 10.4 With the briefing completed, this Court issued an order on April 12 affirming the District Court‘s March 20 decision. We stated that our opinion, analysis, and rationale would follow in due course. The analysis and rationale for our April 12 order are now provided herein.
STANDARDS OF REVIEW
¶17 Several standards of review are implicated in our resolution of this appeal.
¶18 First, we review a district court‘s rulings on summary judgment de novo, applying the same criteria as did the district court under
¶19 Second, the District Court‘s decision involved the interpretation of constitutional and statutory language—albeit, with respect to the latter, proposed statutory language submitted by the Legislature to the electorate in a referendum. The interpretation and construction of constitutional and statutory provisions is a matter of law which we review de novo, determining whether the court‘s interpretation and construction are correct. See Mont. Shooting Sports Assn. v. State, 2010 MT 8, ¶ 12, 355 Mont. 49, 224 P.3d 1240; State v. Brown, 2009 MT 452, ¶ 6, 354 Mont. 329, 223 P.3d 874; State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458; cf. City of Billings v. Albert, 2009 MT 63, ¶ 11, 349 Mont. 400, 203 P.3d 828 (the constitutionality of a statute is a question of law, for which our review is plenary).
¶20 Third, issues of justiciability—such as standing, mootness, ripeness, and political question—are also questions of law, for which our review is de novo. See Northfield Ins. Co. v. Mont. Assn. of Counties, 2000 MT 256, ¶ 8, 301 Mont. 472, 10 P.3d 813 (“A district court‘s ruling on whether a justiciable controversy exists is a conclusion of law.“); Columbia Falls Elementary Sch. Dist. No. 6 v. State, 2005 MT 69, ¶ 12, 326 Mont. 304, 109 P.3d 257 (“Whether an issue presents a non-justiciable political question is a legal conclusion that this Court reviews de novo.“); Mont. State Fund v. Simms, 2012 MT 22, ¶ 14, 364 Mont. 14, 270 P.3d 64 (“A district court‘s determination regarding standing presents a question of law which we review de novo for correctness.“); Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1122 (9th Cir. 2009) (“We review de novo whether a case is moot and whether plaintiffs have standing.“); Verizon Cal. Inc. v. Peevey, 413 F.3d 1069, 1072 (9th Cir. 2005) (“We review de novo whether claims are ripe for judicial review.“).
¶21 Lastly, we review for manifest abuse of discretion the granting of a preliminary or permanent injunction. Shammel v. Canyon Resources Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912. A manifest abuse of discretion is one that is obvious, evident, or unmistakable. Shammel, ¶ 12. However, where the issuance of an injunction is based upon conclusions of law, we review those conclusions to determine if they are correct. St. James Healthcare v. Cole, 2008 MT 44, ¶ 21, 341 Mont. 368, 178 P.3d 696.
¶22 Before we may address the substantive merits of whether LR-119 is invalid, there are two threshold issues which must be considered and resolved. First, Legislators have raised the question whether certain justices of this Court should recuse themselves from this case. This question is obviously antecedent to all other issues on appeal, and we thus address it first (commencing at ¶ 23). Second, the State has raised the question whether Plaintiffs’ challenge to LR-119 is justiciable. The judicial power of Montana‘s courts is limited to justiciable controversies—meaning that our courts do not resolve abstract differences of opinion or advise what the law would be upon a hypothetical state of facts. Plan Helena, Inc. v. Helena Regl. Airport Auth. Bd., 2010 MT 26, ¶¶ 6, 9, 355 Mont. 142, 226 P.3d 567. Hence, issues of justiciability—such as whether the plaintiff has standing and whether the dispute is ripe or moot—are antecedent, as well, to any discussion of the substantive merits of the parties’ claims. Plan Helena, ¶ 11; Heffernan v. Missoula City Council, 2011 MT 91, ¶ 29, 360 Mont. 207, 255 P.3d 80; Havre Daily News, LLC v. City of Havre, 2006 MT 215, ¶¶ 18, 31, 333 Mont. 331, 142 P.3d 864. We therefore address the justiciability question after the recusal question (commencing at ¶ 52). Then, having resolved the recusal question, and having concluded that this case is justiciable, we reach the merits of Plaintiffs’ challenge to LR-119 under Issue 3 (commencing at ¶ 61).
¶23 Issue 1. Whether the non-retiring justices should recuse themselves.
¶24 Legislators argue in their amicus brief that all non-retiring justices of this Court should recuse themselves. Chief Justice McGrath and Justice Morris recused themselves at the outset of this appeal. The Honorable Thomas McKittrick of the Eighth Judicial District Court is sitting for Chief Justice McGrath, and the Honorable Karen Townsend of the Fourth Judicial District Court is sitting for Justice Morris. See
¶25 As an initial matter, it is important to acknowledge that neither
¶26 The general rule, therefore, is that “[s]ince amici curiae are not parties and cannot assume the functions of parties, nor create, extend or enlarge issues, we consider[] the briefs of amici only insofar as they coincide with the issues raised by the parties to the action.” Mont. Wildlife Fedn. v. Sager, 190 Mont. 247, 265, 620 P.2d 1189, 1200 (1980); accord Mont. Power Co. v. Carey, 216 Mont. 275, 277-78, 700 P.2d 989, 990-91 (1985); Carter v. Miss. Farm Bureau Cas. Ins. Co., 2005 MT 74, ¶ 16, 326 Mont. 350, 109 P.3d 735. We have deviated from this rule only in rare instances. See e.g. Crabtree, 204 Mont. at 404, 665 P.2d at 234-35 (“While it is not our custom to address separately issues not raised by the parties, we depart from that practice here because of the widespread impact that the Library and amicus argue our opinion will have on the hiring practices within state and local levels of government.“); Schwinden v. Burlington N., Inc., 213 Mont. 382, 389-90, 397-98, 691 P.2d 1351, 1355, 1358-59 (1984) (addressing an issue raised by amicus—namely, whether to overrule a decision we had issued two years earlier—because the prior decision had created an “emergency” for the counties due to the resulting reduction in their tax revenue, and the prior decision was still “the centerpiece of the problem” faced by the Court in Schwinden); State Compen. Ins. Fund v. Sky Country, Inc., 239 Mont. 376, 378-79, 780 P.2d 1135, 1136-37 (1989) (declining to address the parties’ constitutional arguments in light of an antecedent and potentially dispositive statutory question raised by amicus).
¶27 In the present case, while we reaffirm the general rule stated above, we conclude that the importance of the recusal issues raised by Legislators makes this one of the rare instances in which we should consider a question raised by amici but not by the parties themselves. Because the analysis under the Due Process Clause provides useful context for the analysis under the Montana Code of Judicial Conduct, we shall first address Legislators’ arguments premised on constitutional standards, and then their arguments premised on the ethical standards set forth in the Code.
Constitutional Standards
¶28 Legislators analogize the present case to Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009). In Caperton, the Supreme Court held that due process “require[s] recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.‘” 556 U.S. at 872, 129 S. Ct. at 2257 (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464 (1975)). “The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.‘” Caperton, 556 U.S. at 881, 129 S. Ct. at 2262. Stated another way, “[t]he proper constitutional inquiry is whether sitting on the case ... would offer a possible
¶29 This Court has not heretofore considered the application of these principles to a claim that a justice (or justices) or a judge (or judges) must be recused from a case in the interest of due process. As Legislators concede, the foregoing standards “protect the parties’ basic right to a fair trial in a fair tribunal.” Caperton, 556 U.S. at 887, 129 S. Ct. at 2266 (emphasis added). Again, Legislators are not “parties” to this action, and neither Plaintiffs nor the Attorney General has expressed fairness concerns here. Nevertheless, as noted, given the peculiar significance of the recusal issue in this case, we shall address the due process question.
¶30 Legislators’ argument is that “[s]imilar to the nature of the justices’ interest in Tumey and Caperton ... the justices here have an interest in the outcome of this case.” According to Legislators, the alleged interest of the four not-presently-retiring justices is their “potential” to seek reelection in the future. Legislators note that LR-119 would require the justices to run for reelection from certain geographic districts, rather than statewide, which “could possibly prevent a justice from getting reelected if he or she were unable to
¶31 Legislators are mistaken in their view that these circumstances rise to the level of Caperton and Tumey. The Due Process Clause does not mandate recusal simply because LR-119 “could possibly” prevent a justice, who “potentially” may decide in the future to seek reelection, from getting reelected. It is important here to make clear that “not all questions of judicial qualification ... involve constitutional validity.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106 S. Ct. 1580, 1584 (1986) (ellipsis in original, brackets and internal quotation marks omitted). In fact, ” ‘most matters relating to judicial disqualification do not rise to a constitutional level.’ ” Caperton, 556 U.S. at 876, 129 S. Ct. at 2259 (brackets omitted) (quoting FTC v. Cement Institute, 333 U.S. 683, 702, 68 S. Ct. 793, 804 (1948)). In this regard, the traditional common-law rule, which the Due Process Clause incorporated, required recusal when the judge had a direct, personal, substantial, pecuniary interest in a case, but did not permit disqualification for bias or prejudice. Caperton, 556 U.S. at 876-77, 129 S. Ct. at 2259; Lavoie, 475 U.S. at 820, 106 S. Ct. at 1584; State ex rel. Mueller v. Tenth Jud. Dist. Ct., 87 Mont. 108, 114, 285 P. 928, 930 (1930). “As Blackstone put it, ‘the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.’ ” Lavoie, 475 U.S. at 820, 106 S. Ct. at 1584-85 (citing 3 W. Blackstone, Commentaries *361). Instead, matters of kinship, personal bias, state policy, remoteness of interest, and prejudice were left to statutes and judicial codes. Caperton, 556 U.S. at 876-77, 129 S. Ct. at 2259; Lavoie, 475 U.S. at 820, 106 S. Ct. at 1584-85. In Montana, such matters are addressed and governed by the 2008 Montana Code of Judicial Conduct. And “[b]ecause the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution. Application of the constitutional standard ... will thus be confined to rare instances.” Caperton, 556 U.S. at 890, 129 S. Ct. at 2267.
¶32 Indeed, each of the Supreme Court‘s recusal cases dealt with
¶33 Second, Tumey involved a situation where the mayor of a village had the authority to sit as a judge (with no jury) to try those accused of violating Ohio‘s Prohibition Act. As the Court later noted in Caperton, 556 U.S. at 877, 129 S. Ct. at 2260, two potential conflicts
¶34 Third, Mayberry v. Pa., 400 U.S. 455, 91 S. Ct. 499 (1971), arose out of a criminal trial on charges of prison breach and holding hostages in a penal institution. During the course of trial, Mayberry (who represented himself) engaged in “brazen efforts to denounce, insult, and slander the court and to paralyze the trial.” Mayberry, 400 U.S. at 462, 91 S. Ct. at 503. He did not merely create “awkward and embarrassing scenes“; he leveled “downright insults” against the trial judge and engaged in “tactics taken from street brawls.” Mayberry, 400 U.S. at 462, 91 S. Ct. at 503-04. Thus, in addition to being sentenced on the underlying charges for which he was convicted, the judge also pronounced Mayberry guilty of multiple instances of criminal contempt. Mayberry, 400 U.S. at 455, 91 S. Ct. at 500. On appeal, the question was whether, under the Due Process Clause, a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor. The Supreme Court answered this question in the affirmative. The Court acknowledged that not every attack on a judge disqualifies him from sitting. Mayberry, 400 U.S. at 465, 91 S. Ct. at 505. In Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841 (1964), for example, the Court ruled that a lawyer‘s challenge, though “disruptive, recalcitrant and disagreeable commentary,” was still not “an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.” 376 U.S. at 584, 84 S. Ct. at 847. In Mayberry, however, many of the words leveled at the judge were highly personal aspersions, even “fighting words,” including “dirty sonofabitch,” “dirty tyrannical old dog,” “stumbling dog,” and “fool.” The judge was charged with running a Spanish Inquisition and told to “Go to hell” and “Keep your mouth shut.” Mayberry, 400 U.S. at 466, 91 S. Ct. at 505. Insults of this kind, the Supreme Court observed, “are apt to strike at the most
¶35 Lastly, in Lavoie, a justice of the Alabama Supreme Court (Justice Embry) cast the deciding vote to uphold a punitive damages award against an insurance company for its bad-faith refusal to pay a claim. At the time, Justice Embry was the lead plaintiff in a very similar bad-faith-refusal-to-pay suit pending in Alabama‘s lower courts. Alabama law in this area was unsettled at the time. Thus, when Justice Embry cast the deciding vote and authored the court‘s opinion, he did not merely apply well-established law but, in fact, quite possibly made new law. Moreover, he and the other justices in the majority refused to set aside as excessive a punitive damages award of $3.5 million, although the largest punitive award previously affirmed by the court was $100,000. Lavoie, 475 U.S. at 822-23, 106 S. Ct. at 1585-86. As a result, Justice Embry‘s deciding vote in Lavoie “undoubtedly ‘raised the stakes’ ” for the insurance company (Blue Cross-Blue Shield of Alabama) in his own suit. Lavoie, 475 U.S. at 823-24, 106 S. Ct. at 1586. His opinion for the Alabama Supreme Court “had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case.” Lavoie, 475 U.S. at 824, 106 S. Ct. at 1586. In this respect, Justice Embry had a “direct, personal, substantial, and pecuniary” interest in the outcome and essentially “acted as a judge in his own case.” Lavoie, 475 U.S. at 824, 106 S. Ct. at 1586 (brackets and internal quotation marks omitted). The Supreme Court thus held that Justice Embry‘s participation in Lavoie violated the appellant‘s due process rights. Lavoie, 475 U.S. at 825, 106 S. Ct. at 1587.
¶36 The appellant in Lavoie challenged not only the participation of Justice Embry, but also the participation of the other justices of the Alabama Supreme Court, or at least the six justices who had not withdrawn from Justice Embry‘s class action against Blue Cross. The appellant claimed that these justices also had “an interest in this case.” The Supreme Court concluded, however, that such allegations did not constitute a sufficient basis for requiring recusal under the Constitution. For one thing, “accepting appellant‘s expansive contentions might require the disqualification of every judge in the State. If so, it is possible that under a ‘rule of necessity’ none of the judges or justices would be disqualified.” Lavoie, 475 U.S. at 825, 106 S. Ct. at 1587 (citing United States v. Will, 449 U.S. 200, 214, 101 S. Ct. 471, 480 (1980)).
¶37 Returning now to the present case, we first note that the interest identified by Legislators as necessitating recusal is not exclusive to the four not-presently-retiring justices. In the event of a justice‘s disqualification, “[a] district judge shall be substituted.”
¶38 But more importantly, “the potential” to run for reelection in the future, coupled with the fact that LR-119 “could possibly” prevent a justice from getting reelected if he or she were unable to garner the required number of votes to win in a particular district, does not constitute a “direct, personal, substantial, and pecuniary” interest. Lavoie, 475 U.S. at 825-26, 106 S. Ct. at 1587-88 (brackets and internal quotation marks omitted). Indeed, any interest the justices might5
¶39 There is “a presumption of honesty and integrity in those serving as adjudicators.” Withrow, 421 U.S. at 47, 95 S. Ct. at 1464. “Charges of disqualification should not be made lightly.” Lavoie, 475 U.S. at 826-27, 106 S. Ct. at 1588. Considering the matter objectively, the interest alleged by Legislators does not “offer a possible temptation to the average ... judge to ... lead him [or her] not to hold the balance nice, clear and true.” Caperton, 556 U.S. at 879, 129 S. Ct. at 2261 (ellipses in original, internal quotation marks omitted). Restated, “under a realistic appraisal of psychological tendencies and human weakness,” the interest does not pose “such a risk of actual bias or prejudgment” that the four justices must recuse themselves as a matter of due process. Caperton, 556 U.S. at 883-84, 129 S. Ct. at 2263 (internal quotation marks omitted).
¶40 Except in “rare instances,” disqualification issues may be resolved without resort to the Constitution and instead pursuant to codes of judicial conduct. Caperton, 556 U.S. at 890, 129 S. Ct. at 2267. Having explained, in some detail, why this case is not one of those “rare instances,” we now turn to Montana‘s Code of Judicial Conduct.
Code of Judicial Conduct
¶41 The 2008 Montana Code of Judicial Conduct “establishes standards for the ethical conduct of judges and judicial candidates.”
¶42 Legislators focus on Rule 2.12(A), which states: “A judge shall disqualify himself or herself in any proceeding in which the judge‘s impartiality might reasonably be questioned.” This includes circumstances where “[t]he judge knows that the judge ... has more than a de minimis interest that could be substantially affected by the proceeding.”
interest need not be economic; in fact, “an economic interest in the subject matter in controversy or in a party to the proceeding” is covered separately in Rule 2.12(A)(3). In addition to Rule 2.12(A), Legislators also cite
¶43 Based on these provisions, Legislators contend that the four not-presently-retiring justices have more than a de minimis interest in this proceeding—namely, their ability to get reelected. Legislators further contend that LR-119 “directly affects” this interest because LR-119 would require the justices to run for reelection from certain geographical districts, rather than statewide, and this change “could possibly” prevent a justice from getting reelected. Legislators thus argue that “any justice who has even the potential to run for reelection in the future has a duty to the public and to the court as an institution to disqualify himself or herself from this case” and to “call in district court judges.”
¶44 As an initial matter, we again note the implausibility of Legislators’ proposal. Like sitting Supreme Court justices, district court judges have “the potential” to run for a seat on this Court in the future, “could possibly” be prevented by LR-119 from getting elected, and thus (under Legislators’ theory) have an “interest” in the outcome of this case. That being so, the rule of necessity would apply and none of the justices would be disqualified. See ¶ 37, supra; see also Mont. Code of Jud. Conduct, Rule 2.12 cmt. [3] (“The rule of necessity may override the rule of disqualification.“).
¶45 That point aside, Legislators apply an incorrect standard. The issue is not whether the four justices have an interest that would be directly affected by this proceeding. It is whether they know they have more than a de minimis interest that could be substantially affected by the proceeding. Mont. Code of Jud. Conduct, Rule 2.12(A)(2)(c). At this point—roughly two years before Justices Rice and Wheat must decide whether to seek reelection, four years before Justice Cotter must decide, and six years before Justice Baker must decide—it cannot be said that these justices “know” they have more than a de minimis interest in this case. Moreover, even assuming, for the sake of argument, that the justices presently know they have an interest in being reelected, this interest would not be “substantially” affected by this proceeding. It is sheer conjecture whether district elections under LR-119, in lieu of statewide elections under the current system, would
¶46 We note that courts in other jurisdictions have reached similar conclusions about the necessary degree of interest. For example, in In re Placid Oil Co., 802 F.2d 783 (5th Cir. 1986), the court refused “to adopt a rule requiring recusal in every case in which a judge owns stock of a company in the same industry as one of the parties to the case.” 802 F.2d at 786. Although the trial judge there held “a large investment in a Texas bank that may be affected by rulings in this case,” the court explained that “[a] remote, contingent, and speculative interest” such as this does not create a situation in which the judge‘s impartiality “might reasonably be questioned.” Placid Oil Co., 802 F.2d at 786-87. Similarly, the court in Bratz v. Bratz, 495 A.2d 292 (Conn. App. 1985), rejected the defendant‘s claim that the trial judge had a potential interest in the outcome of the proceeding due to the judge‘s prior association with a law firm that had represented the plaintiff‘s father 15 years earlier. The court stated that “[t]he interest in the potential outcome of a case that will disqualify a judge must be a present one. It must be direct, certain and immediate ....” Bratz, 495 A.2d at 295 (emphasis in original); accord State ex rel. Anaya v. Scarborough, 410 P.2d 732, 734 (N.M. 1966) (“an ‘interest’ necessary to disqualify a judge must be a present pecuniary interest in the result, or actual bias or prejudice, and not some indirect, remote, speculative, theoretical or possible interest“); Am. Rural Cellular, Inc. v. Sys. Commun. Corp., 939 P.2d 185, 194 (Utah App. 1997) (in general, to effect the disqualification of a judge, “‘the interest at issue must be direct, certain, and immediate, and not one which is indirect, contingent, incidental, or remote‘” (quoting what is now 46 Am. Jur. 2d Judges § 90 (2006))); see also Sturgis v. Skokos, 977 S.W.2d 217, 223 (Ark. 1998) (“to be disqualifying, the prospective liability, gain, or relief to the judge must turn on the outcome of the suit“); In re African-American Slave Descendants Litig., 307 F. Supp. 2d 977, 989 (N.D. Ill. 2004) (“arguments based on mere speculation are insufficient to warrant recusal“).
¶47 In In re Va. Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976), the trial judge was a customer of VEPCO, the plaintiff utility company. The only interest the judge had in the case was a “remote contingent possibility” of sharing in any refund that might be ordered for all
if VEPCO wins the lawsuit, and if it is awarded the entire amount claimed, and if the defendants satisfy the judgment, and if the Virginia State Corporation Commission decides that VEPCO must return to its customers that part of the award representing increased fuel costs, and when VEPCO makes such an adjustment, then the trial judge, as a customer of VEPCO, would get a refund estimated at between $70 and $100.
Va. Elec., 539 F.2d at 360 (emphases in original). The court reasoned that
[s]uch a contingent interest does not presently exist and will not be created by any judgment that may be entered in this litigation. Neither [the trial judge] nor any other customer of VEPCO will have a claim for refund until, if ever, there occurs an intervening and independent decision of a state agency, the Virginia State Corporation Commission, which regulates public utilities.
Va. Elec., 539 F.2d at 366. The interest being so “remote and speculative,” the court held that recusal was not mandated. Va. Elec., 539 F.2d at 368-69.
¶48 Likewise, as discussed, there are a variety of contingencies and intervening and independent decisions which make the alleged interest in the present case too remote and speculative: if the justices divine correctly which vote (to uphold LR-119 or to strike it down) will give them the best chances for reelection, if the voters pass LR-119 (assuming it is upheld by this Court), if the justices decide to seek reelection, and if the justices draw opponents in their respective elections, then they might conceivably benefit from having sat on this case. Such a theoretical interest does not require disqualification.
¶49 In reaching this conclusion, we are also mindful of Rule 2.7, which states: “A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.12 or other law.” The comment to this rule explains:
Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge‘s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge‘s colleagues require that a judge not use disqualification to avoid
cases that present difficult, controversial, or unpopular issues.
Mont. Code of Jud. Conduct, Rule 2.7 cmt. [1].
¶50 In sum, the ultimate question here is whether the four justices’ impartiality “might reasonably be questioned.” Mont. Code of Jud. Conduct, Rule 2.12(A). The fact that the justices have “the potential” to run for reelection, coupled with the fact that LR-119 “could possibly” hinder their reelection bids, does not establish that the justices’ impartiality might reasonably be questioned. Legislators have presented no other legal theories for recusal. And neither Legislators nor the parties have pointed to any actual evidence of bias, prejudice, or unethical conduct on the part of any justice or judge sitting on this case. Absent evidence to the contrary, the “presumption of honesty and integrity in those serving as adjudicators” stands. Withrow, 421 U.S. at 47, 95 S. Ct. at 1464.
¶51 Having given thoughtful and detailed consideration to Legislators’ concerns under the Due Process Clause, the Code of Judicial Conduct, and
¶52 Issue 2. Whether Plaintiffs’ constitutional challenge to LR-119 is justiciable.
Principles of Justiciability and Ripeness
¶53 As stated above, the judicial power of Montana‘s courts is limited to “justiciable controversies.” Plan Helena, Inc. v. Helena Regl. Airport Auth. Bd., 2010 MT 26, ¶ 6, 355 Mont. 142, 226 P.3d 567. In general terms, a justiciable controversy is one that is “definite and concrete, touching legal relations of parties having adverse legal interests” and “admitting of specific relief through decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, or upon an abstract proposition.” Chovanak v. Matthews, 120 Mont. 520, 526, 188 P.2d 582, 585 (1948) (emphasis omitted). To be justiciable, the parties must have existing and genuine (rather than theoretical) rights or interests, the questions must be presented in an adversary context, and the controversy must be one upon which a court‘s judgment will effectively and conclusively operate, as distinguished from a dispute invoking a purely political, administrative, philosophical, or academic conclusion. Plan Helena, ¶¶ 7-8; Montana-Dakota Utils. Co. v. City of Billings, 2003 MT 332, ¶ 9, 318 Mont. 407, 80 P.3d 1247. This limitation on judicial power derives primarily from the Montana Constitution, which limits the courts to deciding only cases and controversies, but also from the courts themselves, which have adopted discretionary limitations on the
¶54 The central concepts of justiciability have been elaborated into more specific doctrines—advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions, and administrative questions—each of which is governed by its own set of substantive rules. Greater Missoula, ¶ 23. At issue here is ripeness, which is concerned with whether the case presents an “actual, present” controversy. Mont. Power Co. v. Mont. Pub. Serv. Commn., 2001 MT 102, ¶ 32, 305 Mont. 260, 26 P.3d 91. The basic purpose of the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. Mont. Power Co., ¶ 32 (citing Portman v. County of Santa Clara, 995 F.2d 898, 902-03 (9th Cir. 1993)). Ripeness is predicated on the central perception that courts should not render decisions absent a genuine need to resolve a real dispute; hence, cases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts. Wis. C., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008); see also Mont. Power Co., ¶ 32.
¶55 In analyzing ripeness, it is helpful to understand its relationship to standing and mootness. To meet the constitutional case-or-controversy requirement for standing, the plaintiff must clearly allege a past, present, or threatened injury to a property or civil right, and the injury must be one that would be alleviated by successfully maintaining the action. Heffernan, ¶ 33. Note that standing may rest not only on past or present injury, but also on threatened injury. Gryczan v. State, 283 Mont. 433, 442-43, 942 P.2d 112, 118 (1997); Missoula City-County Air Pollution Control Bd. v. Bd. of Envtl. Rev., 282 Mont. 255, 261-63, 937 P.2d 463, 467-68 (1997). Ripeness and mootness, in turn, can be seen as “the time dimensions of standing.” Charles Alan Wright et al., Federal Practice and Procedure vol. 13B, § 3531.12, 163 (3d ed., Thomson/West 2008). Ripeness asks whether an injury that has not yet happened is sufficiently likely to happen or, instead, is too contingent or remote to support present adjudication, whereas mootness asks whether an injury that has happened is too far
¶56 There is both a constitutional and a prudential component to the ripeness inquiry. Portman, 995 F.2d at 902; accord Natl. Park Hospitality Assn. v. Dept. of Int., 538 U.S. 803, 808, 123 S. Ct. 2026, 2030 (2003) (the ripeness doctrine is drawn both from constitutional limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction); Mont. Power Co., ¶ 32 (the ripeness doctrine is grounded in the Constitution as well as in judicial prudence). The constitutional component focuses on whether there is sufficient injury, and thus is closely tied to standing. Portman, 995 F.2d at 902-03. “Whether framed as an issue of standing or ripeness, the [constitutional] inquiry is largely the same: whether the issues presented are definite and concrete, not hypothetical or abstract.” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010) (internal quotation marks omitted). The prudential component, on the other hand, involves a weighing of the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Wolfson, 616 F.3d at 1060. The principal consideration under the fitness inquiry is whether there is a factually adequate record upon which to base effective review. Havre Daily News, LLC v. City of Havre, 2006 MT 215, ¶ 20, 333 Mont. 331, 142 P.3d 864; see also Portman, 995 F.2d at 903. The more the question presented is purely one of law, and the less that additional facts will aid the court in its inquiry, the more likely the issue is to be ripe, and vice-versa. Havre Daily News, ¶ 20.
Application to Present Case
¶57 At the outset, it is important to note that we are analyzing the question of ripeness based on the facts that existed on April 12, 2012, when we issued our order affirming the District Court‘s March 20 decision (including the District Court‘s conclusion that this matter is ripe). As explained, the State requested that we expedite the disposition of this appeal and render our decision by April 13 due to
¶58 Starting with the constitutional component of ripeness, the Legislature has placed a referendum on the June 5 ballot concerning the election of Supreme Court justices. If passed, the statutory changes outlined in the referendum are effective immediately. They will change the manner in which justices are elected to Seats 5 and 6 (presently held by Justice Nelson and Justice Morris, respectively), which are up for election this year. The deadline to file as a candidate for those seats was March 12. While all registered voters in the state may vote in the June primary election for the candidates running for Seats 5 and 6, only registered voters in the Fifth and Sixth Supreme Court districts, respectively, will be permitted to vote for those seats in the November general election (if LR-119 is adopted). Plaintiffs challenge LR-119 as impermissibly amending the constitutionally established qualifications for, and selection of, Supreme Court justices by creating a residency requirement and thereby disenfranchising Plaintiffs. They allege a threatened injury because LR-119, should it pass, will deprive them of their right to vote for each seat on the Supreme Court. For those Plaintiffs who do not reside in the Fifth and Sixth Supreme Court districts, the disenfranchisement will occur this election cycle. The issues presented are definite and concrete, not hypothetical or abstract, and this case thus presents a controversy in the constitutional sense. Cf. Air Pollution Control Bd., 282 Mont. at 262-63, 937 P.2d at 468 (“potential economic harm” is sufficient to establish a threatened injury); Gryczan, 283 Mont. at 443-44, 942 P.2d at 118-19 (although the challenged deviate-sexual-conduct statute had never been enforced against consenting adults and no prosecution under the statute was imminent, plaintiffs established a threatened injury because the statute was only 24 years old, it had been amended as recently as 1991, the Legislature had decided three times in the preceding seven years not to repeal the statute, plaintiffs were the individuals the statute was designed to impact, and there was nothing to prevent a county attorney from enforcing the statute).
¶59 Turning to prudential considerations, we must weigh the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. In this regard, this Court has noted
¶60 In the present case, the record is factually adequate to enable the court to make the necessary legal determinations. Havre Daily News, ¶ 20. The question presented is purely one of law, and no additional facts will aid the court in its inquiry. Havre Daily News, ¶ 20. As explained below under Issue 3, the constitutional infirmity is clear on the face of the measure in that LR-119 attempts to amend the Constitution by means of a statutory referendum. Furthermore, as explained under Issue 4, the constitutionally infirm portions of LR-119 cannot be severed from the remainder of the referendum. The issues are fit for judicial decision, and the hardship of withholding consideration of those issues would be great for the reasons just discussed. Accordingly, we conclude that Plaintiffs’ challenge to LR-119 is ripe.
¶61 Issue 3. Whether LR-119 is constitutionally defective.
The Constitutional Provisions
¶62 Article VII, Section 9 of the Montana Constitution specifies the “[q]ualifications” of Supreme Court justice and district court judge. It states:
A citizen of the United States who has resided in the state two years immediately before taking office is eligible to the office of supreme court justice or district court judge if admitted to the practice of law in Montana for at least five years prior to the date of appointment or election. Qualifications and methods of selection of judges of other courts shall be provided by law.
¶63 In addition to
¶64 The language and structure of these sections demonstrate that the Constitution intends Supreme Court justices to be elected and serve on a statewide basis, district court judges to be elected and serve on a district-wide basis, and justices of the peace to be elected and serve on a countywide basis.9 When a justice or judge is to be selected from a discrete geographic area, the Constitution states that requirement expressly—as it does with district court judges and justices of the peace. The election of representatives and senators from “districts” is likewise explicit in the Constitution. See
¶65 This structure is consistent with the Supreme Court‘s function. Under
Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best
Dennis v. United States, 341 U.S. 494, 525, 71 S. Ct. 857, 875 (1951) (Frankfurter, J., concurring in affirmance of the judgment). Legislative and executive officials serve in representative capacities, as agents of the people, whose primary function is to advance the interests of their constituencies. Judges, in contrast,
are not political actors. They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency. “[I]t is the business of judges to be indifferent to popularity.” [Chisom v. Roemer, 501 U.S. 380, 401 n. 29, 111 S. Ct. 2354, 2367 n. 29 (1991)] (internal quotation marks omitted). They must strive to do what is legally right, all the more so when the result is not the one “the home crowd” wants. Rehnquist, Dedicatory Address: Act Well Your Part: Therein All Honor Lies, 7 Pepperdine L. Rev. 227, 229-300 (1980). Even when they develop common law or give concrete meaning to constitutional text, judges act only in the context of individual cases, the outcome of which cannot depend on the will of the public. See [W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 1185-86 (1943)] (“One‘s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.“).
Republican Party of Minn. v. White, 536 U.S. 765, 805-06, 122 S. Ct. 2528, 2551 (2002) (Ginsburg, Stevens, Souter, & Breyer, JJ., dissenting) (first brackets in original). The obligation of Supreme Court justices is to interpret and apply the law on a uniform basis statewide. The requirements and protections of the Constitution and the law do not vary from one county or district to another. They are the same whether one is from Yaak, Broadus, Wisdom, or Plentywood. Ethical rules do not permit judges to “represent” particular constituencies or interest groups. See Mont. Code of Jud. Conduct, Rule 2.2 (Impartiality and Fairness), Rule 2.3 (Bias, Prejudice, and Harassment). These principles are implicit in the constitutional design, which establishes the office of Supreme Court justice as one subject to selection by electors statewide.
¶66 Current statutes are consistent with
¶67 First, LR-119 would create new qualifications for the office of Supreme Court justice. Specifically, it would add the following italicized language to
(1) A person is not eligible for the office of justice of the supreme court unless the person is a citizen of the United States, has resided in the state 2 years immediately before taking office, and has been admitted to practice law in Montana for at least 5 years prior to the date of appointment or election.
(2) Justices of the supreme court must reside within the state during their terms of office. Once elected from a district, a justice is not required to reside within the district during the justice‘s service in office.
(3) A supreme court justice must, at the time of initial election, be a qualified elector of the supreme court district from which the justice is elected. A supreme court justice appointed to fill a vacancy must, at the time of appointment, be a qualified elector of the same initial supreme court district as the justice being replaced, and in an election following an appointment, the elected justice must be a qualified elector of the initial district.
LR-119 (SB 268), § 2. Hence, in addition to (1) being a citizen of the United States who (2) has resided in Montana for two years immediately before taking office and (3) has been admitted to practice law in Montana for at least five years prior to the date of appointment or election, the person would also have to (4) “be a qualified elector” of the Supreme Court district from which the person is elected or appointed.
¶68 [5] The Constitution defines “qualified elector” as “[a]ny citizen of the United States 18 years of age or older who meets the registration and residence requirements provided by law ....”
¶69 Second, LR-119 would alter the structure of the Supreme Court. It would revise
¶70 In many respects, LR-119‘s proposed system for selecting justices is identical to the Constitution‘s existing system for selecting senators and representatives.
¶71 As with the attempt to add qualifications to the office of Supreme Court justice, however, this attempt to alter the structure of the Supreme Court by making it into a representative body composed of members elected from districts is likewise facially unconstitutional. Neither the Legislature nor the people have the power to alter the constitutionally established structure of government by means of a statutory referendum. Again, such amendments to the Constitution must be made through one of the methods permitted by the Constitution itself. See
The State‘s Article VII, Section 8(1) Theory
¶73 First, the State contends that LR-119 “does not impermissibly add to or change” the Constitution, but instead “implements” the Constitution pursuant to
¶74 We disagree with the State‘s reading of this provision. For starters,
¶75 Nor is
¶76 In 1991, the 52nd Montana Legislature passed House Bill 353 (HB 353), which submitted to the electors various amendments to
the general constitutional rule is that appointees and nonappointees shall stand for contested and uncontested elections at the general elections prior to the expiration of each judicial term. The exception to that general rule provides that when the Senate has not had an opportunity to confirm a nominee, the nominee must stand for election for the first time at the next election following Senate confirmation.
Racicot, 243 Mont. at 391, 794 P.2d at 1187. Hence, because the Senate had not yet considered the nominations of Justice Barz and Judges Colberg and Moran, the Secretary of State was not required to place their offices on the 1990 ballot. Presumably, Senate confirmation
¶77 That is the problem to which the Section 8 amendments were addressed. HB 353 added what is now
¶78 Thus, HB 353 was a timing measure. Nothing in the plain language of
The State‘s Con-Con Theory
¶79 The State‘s second theory is premised on the records from the 1972 Constitutional Convention (Con-Con). In this regard, Plaintiffs’ position is that the relevant language of
¶80 As discussed in Racicot, 243 Mont. at 387-88, 794 P.2d at 1184-85, the Judiciary Committee presented the delegates with two different proposals. The majority proposal provided for the selection of justices and judges primarily through general elections, while the minority proposal provided for the selection of justices and judges through a system of appointment with an approval-or-rejection election for each succeeding term. The delegates voted to adopt the minority proposal, but then, in a series of debates and amendments before the committee of the whole, broadened its election provisions. In the midst of those debates, Delegate Holland moved to amend part of the minority proposal by substituting the following language taken from Section 6 of the majority proposal: “The justices of the Supreme Court shall be elected by the electors of the state at large, and the term of the office of the justices of the Supreme Court, except as in this Constitution otherwise provided, shall be six years.” See Montana Constitutional Convention, Verbatim Transcript, Feb. 29, 1972, p. 1086; Montana Constitutional Convention, Judiciary Committee Proposal, Feb. 17, 1972, vol. I, p. 487. Ultimately, this amendment failed by a narrow margin. Montana Constitutional Convention, Verbatim Transcript, Feb. 29, 1972, p. 1099. And from this fact, the State posits that “the attempt to constitutionally require the election of Supreme Court Justices at-large was rejected by the convention.”
¶81 We cannot agree with this inference. Delegate Holland‘s amendment was the third of five proposals that were placed before the delegates concerning the selection of Supreme Court justices and
¶82 In sum, LR-119 would create new qualifications for the office of Supreme Court justice by requiring each justice to be a “qualified elector“—i.e., a registered voter and resident—of the Supreme Court district from which the justice is elected or appointed. In addition, LR-119 would alter the structure of the Supreme Court by converting it from a statewide elected institution into a district-based representative body. Correspondingly, LR-119 would eliminate the right presently held by all Montana voters to select all seven justices of the Supreme Court. Legislators argue extensively in their amicus brief that the process of electing justices from smaller, local districts from around the state has “inherent value.” However, this case is not about the wisdom or “value” of the changes proposed by LR-119. The point, rather, is that these changes constitute amendments to the Constitution, which cannot be achieved by means of a statutory referendum. Accordingly, we hold that LR-119 is facially unconstitutional.
¶83 Issue 4. Whether the constitutionally infirm provisions of LR-119 can be severed from the remainder of the referendum.
¶84 As noted at the outset, LR-119 would effect three changes concerning the qualifications and selection of Supreme Court justices. First, it would require a candidate to be a qualified elector of the district from which the candidate is elected. Second, it would require that each justice be elected from a separate district and would
¶85 In this regard, the State points out that LR-119 contains a severability section, which states: “If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.” LR-119 (SB 268), § 6 (brackets in original). The State and Legislators argue that severability could be accomplished here and that the remainder of the referendum could go to the electorate. Plaintiffs, on the other hand, argue that the District Court got it right when it concluded that the invalid portions of the referendum cannot be severed from the rest. We agree with Plaintiffs.
¶86 It is a well-established principle that a statute is not destroyed in toto because of an improper provision, unless such provision is necessary to the integrity of the statute or was the inducement to its enactment. Hill v. Rae, 52 Mont. 378, 389-90, 158 P. 826, 831 (1916); State ex rel. Evans v. Fire Dept. Relief Assn., 138 Mont. 172, 178, 355 P.2d 670, 673 (1960); Mont. Auto. Assn. v. Greely, 193 Mont. 378, 399, 632 P.2d 300, 311 (1981); Sheehy v. Pub. Employees Ret. Div., 262 Mont. 129, 141, 864 P.2d 762, 770 (1993); Finke v. State ex rel. McGrath, 2003 MT 48, ¶ 25, 314 Mont. 314, 65 P.3d 576; Oberson v. U.S. Dept. of Agric., 2007 MT 293, ¶ 26, 339 Mont. 519, 171 P.3d 715. “If, when an unconstitutional portion of an act is eliminated, the remainder is complete in itself and capable of being executed in accordance with the apparent legislative intent, it must be sustained.” Mont. Auto. Assn., 193 Mont. at 399, 632 P.2d at 311 (citing Gullickson v. Mitchell, 113 Mont. 359, 375, 126 P.2d 1106, 1114 (1942)).
¶87 Applying these principles, the District Court reviewed the language and legislative history of LR-119 and found that the Legislature did not pass LR-119 for the purpose of changing the method of selecting the chief justice. In other words, this was not the
¶88 Neither the State nor Legislators refute the District Court‘s reasoning. Nor do they suggest that it would be proper for the courts to rewrite this referendum in order to salvage some small part of it. Legislators maintain that the change to how the chief justice is selected is “independent” of the other changes effected by LR-119 and is itself constitutional. However, even assuming this to be true for the sake of argument, we agree with the District Court that changing how the chief justice is selected was not the inducement for passing LR-119.12 Furthermore, as the District Court noted, salvaging this part of the referendum would involve completely rewriting the title, the ballot statement, the statements of implication, and the text of the referendum itself—which the courts are not situated to do. For these reasons, we conclude that the constitutionally infirm portions of LR-119 cannot be severed from the remainder of the referendum.
¶89 Based on the foregoing analysis, we conclude and hold that Justices Rice, Wheat, Cotter, and Baker are not required to recuse themselves from sitting on this case; that this case presents a justiciable controversy; that LR-119‘s proposed amendments to the qualifications and structure of the Supreme Court are facially unconstitutional; and that the provision regarding the selection of the chief justice is not severable from LR-119‘s constitutionally infirm provisions. Accordingly, the District Court‘s decision is affirmed.
¶90 Affirmed.
JUSTICES WHEAT, COTTER, RICE, DISTRICT JUDGE McKITTRICK, sitting for CHIEF JUSTICE McGRATH and DISTRICT JUDGE TOWNSEND, sitting for JUSTICE MORRIS.
JUSTICE BAKER, concurring in part and dissenting in part.
¶91 I join the Court‘s opinion and holding with respect to Issue 1. I dissent with respect to Issue 2, and I would not reach Issues 3 or 4.
¶92 As indicated in the Court‘s order of April 12, 2012, I would reverse the District Court‘s decision to decertify LR-119 from the June 5, 2012 ballot and hold this appeal in abeyance pending the results of that election. I would not reach the constitutional challenge absent approval of the measure by a majority of voters casting ballots in the special election held for that purpose. Accordingly, I express no opinion on the merits of the constitutional issues or the Court‘s analysis in that regard.
¶93 We have long recognized “the principle that ‘initiative and referendum provisions of the Constitution should be broadly construed to maintain the maximum power in the people.‘” Nicholson v. Cooney, 265 Mont. 406, 411, 877 P.2d 486, 488 (1994) (quoting Chouteau County v. Grossman, 172 Mont. 373, 378, 563 P.2d 1125, 1128 (1977)). “A referendum is not a single act, it is a process. That process is not complete until the electorate has spoken.” Harper v. Greely, 234 Mont. 259, 269, 763 P.2d 650, 656 (1988) (quoting the ruling of then-District Judge Gordon R. Bennett). The Supreme Court is not part of this two-step legislative referendum process. Instead, the Court rules on constitutionality of legislation only if, and after, a duly-enacted law has been challenged. Here, displaying “lack of confidence in the knowledge of the voters,” Mont. Consumer Fin. Ass‘n v. State, 2010 MT 185, ¶ 24, 357 Mont. 237, 238 P.3d 765 (Morris, J., concurring), and contrary to well-established tenets of judicial review, the Court has pre-empted the legislative referendum process to reach the merits of the constitutional issues.
¶95 Our decision in Cobb was rendered in accordance with a statute in place at the time that allowed a pre-election challenge to an initiative or referendum if it challenged a “constitutional defect in the substance of a proposed ballot issue.”
¶96 Withholding consideration of the alleged constitutional defect in LR-119 until after the election—and then, obviously, only if the measure passed—would comport with the process set forth in the statute and remain true to the restraint that characterizes our consideration of constitutional challenges. “[T]he constitutional requirement of a ‘case or controversy’ contemplates real controversies and not abstract differences of opinion.” Greater Missoula Area Fed‘n of Early Childhood Educators v. Child Start, Inc., 2009 MT 362, ¶ 23, 353 Mont. 201, 219 P.3d 881.
¶97 The Court determines that LR-119 presents unique grounds for pre-election review because of its effect in the current election cycle, observing that the measure threatened to disenfranchise voters outside the Fifth and Sixth Supreme Court Districts. (Opinion ¶ 58.) The Court‘s concerns, however, conflate the merits of the constitutional issues with the timing of their consideration. The legislature clearly was within its authority to order a special election in conjunction with the June 5 primary election.
¶99 Finally, the Court holds that it would have been a “waste of time and money” to place the measure on the ballot. (Opinion ¶ 59.) Although I agree that delays in this case, including the State‘s inexplicable failure to secure a stay of the District Court‘s decision, were regrettable and have made the process tortuous and more costly than necessary, these types of emergencies are not uncommon in election matters and the court system is equipped to deal with them. I cannot ascribe “no corresponding benefit” (Opinion ¶ 59) to the fulfillment of our Constitution‘s guarantee of the right of initiative and referendum. The “consum[ption of] resources” in this case (Opinion ¶ 59) is not sufficient to outweigh the people‘s right to vote. The Court‘s decision to protect the voters from a measure referred by the legislature is patronizing and elevates judicial economy above respect for the constitutional process and the people‘s role in it.
¶100 We should decline to interfere with the initiative and referendum process “unless it appears to be absolutely essential.” Mont. Citizens for the Preservation of Citizens’ Rights, 224 Mont. at 276, 729 P.2d at 1285. Because a decision on the constitutional issues could have been rendered quickly following the primary election had the referendum passed, the Court‘s interference now is not, in my view, “absolutely essential.” I dissent.
BALLOT LANGUAGE
LEGISLATIVE REFERENDUM NO. 119
AN ACT REFERRED BY THE LEGISLATURE
AN ACT REQUIRING THAT SUPREME COURT JUSTICES BE ELECTED AND APPOINTED FROM SUPREME COURT DISTRICTS; ESTABLISHING SUPREME COURT DISTRICTS; PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA AT A SPECIAL ELECTION TO BE HELD CONCURRENTLY WITH THE 2012 PRIMARY ELECTION; AMENDING SECTIONS 3-2-101 AND 3-2-102, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
The Montana Supreme Court is composed of seven justices, one of whom is Chief Justice. Under current law, the justices are elected statewide and each Montanan votes for all seven positions. LR-119 would change existing law so that each justice is elected from one of seven districts of approximately equal population, with the Chief Justice then chosen from the seven by majority vote of the justices. Only Montanans living in each district would vote for their district‘s justice. Justices must reside in their district when initially elected.
[ ] FOR requiring supreme court justices to be elected or appointed from districts with approximately equal populations.
[ ] AGAINST requiring supreme court justices to be elected or appointed from districts with approximately equal populations.
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AN ACT REQUIRING THAT SUPREME COURT JUSTICES BE ELECTED AND APPOINTED FROM SUPREME COURT DISTRICTS; ESTABLISHING SUPREME COURT DISTRICTS; PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA AT A SPECIAL ELECTION TO BE HELD CONCURRENTLY WITH THE 2012 PRIMARY ELECTION; AMENDING SECTIONS 3-2-101 AND 3-2-102, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 3-2-101, MCA, is amended to read:
“3-2-101. Number, election, and term of office -- selection of chief justice. (1) The supreme court consists of a chief justice and six associate justices who are elected by the qualified electors of the state at large must be qualified electors of the district from which they are elected, with each member elected from a separate district of the state as provided in [section 3]. Each justice must be elected at the general state elections election next preceding the expiration of the terms term of office of their predecessors, respectively, the justice‘s predecessor and hold their offices holds office for the term of 8 years from and after the first Monday of January next succeeding their the justice‘s election.
(2) After the general election in 2016, the chief justice must be selected by the majority vote of the seven justices at the first meeting of the court in each year after a general election.”
Section 2. Section 3-2-102, MCA, is amended to read:
“3-2-102. Qualifications and residence. (1) A person is not eligible for the office of justice of the supreme court unless the person is a citizen of the United States, has resided in the state 2 years immediately before taking office, and has been admitted to practice law in Montana for at least 5 years prior to the date of appointment or election.
(2) Justices of the supreme court must reside within the state during their terms of office. Once elected from a district, a justice is not required to reside within the district during the justice‘s service in office.
(3) A supreme court justice must, at the time of initial election, be a qualified elector of the supreme court district from which the justice is elected. A supreme court justice appointed to fill a vacancy must, at the time of appointment, be a qualified elector of the same initial supreme court district as the justice being replaced, and in an election following an appointment, the elected justice must be a qualified elector of the initial district.”
Section 3. Supreme court districts defined -- number of judges. (1) In this state there are seven supreme court judicial districts, distributed as follows:
(a) 1st district: Cascade, Chouteau, Fergus, Golden Valley, Hill, Judith Basin, Liberty, Meagher, Pondera, Teton, and Wheatland Counties;
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(c) 3rd district: Yellowstone County;
(d) 4th district: Lewis and Clark, Deer Lodge, Granite, Jefferson, Ravalli, Powell, and Broadwater Counties;
(e) 5th district: Flathead, Lincoln, Glacier, Sanders, and Toole Counties;
(f) 6th district: Gallatin, Madison, Beaverhead, and Silver Bow Counties;
(g) 7th district: Missoula, Lake, and Mineral Counties.
(2) There must be one supreme court justice selected from each district.
(3) The legislature shall review the districts after each decennial census for purposes of maintaining districts with approximately equal populations while following county lines.
Section 4. Transition. (1) [This act] may not remove any justice that is holding office on [the effective date of this act] during the term for which the justice was elected or appointed. After [the effective date of this act], each sitting associate justice must be assigned to the judicial district that corresponds to the associate justice‘s current seat number and the chief justice must be assigned to the seventh district.
(2) (a) Except as provided in subsection (2)(b), each supreme court justice who chooses to seek reelection at the end of the justice‘s current term shall run for reelection in the district to which the justice is assigned under subsection (1).
(b) A sitting justice that chooses to seek election in a district other than the district assigned under subsection (1) may run for election in the district if the justice resigns the justice‘s current seat effective as of the date the justice files for election in the district to which the justice seeks election.
(3) In the 2012 election, the two candidates receiving the most votes in the primary for each seat up for reelection advance to the 2012 general election for the district that corresponds to the same seat number.
Section 5. Codification instruction. [Section 3] is intended to be codified as an integral part of Title 3, chapter 2, and the provisions of Title 3, chapter 2, apply to [section 3].
Section 6. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
Section 7. Effective date. [This act] is effective upon approval by the electorate.
Section 8. Applicability. [This act] applies to the election and appointment of supreme court justices to terms that begin on or after [the effective date of this act].
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[ ] FOR requiring supreme court justices to be elected or appointed from districts with approximately equal populations.
[ ] AGAINST requiring supreme court justices to be elected or appointed from districts with approximately equal populations.
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